OIKOS Red Ambiental v. Mendoza Province

On April 9, 2018, OIKOS Red Ambiental (an ENGO) filed a claim challenging the constitutionality of Decree Nº 248/2018 of the Provincial Ministry of Economy, Infrastructure and Energy, which regulates the procedure of authorization of fracking activities. Among other arguments, the plaintiff alleged irregularities in the process through which the Decree was enacted (failure to take into consideration public participation) and that the Decree would allow, as part of the consented fracking activities, excessive and illegal consumption of water, which is a scarce and specially protected resource in the Province. Furthermore, the plaintiff warned about the potential use of products with radioactive content in the fracking operations and the underestimation of risks related to volcanoes located in the Province. Different legal grounds are used by OIKOS, including the constitutional right to a healthy environment (Article 41 of the National Constitution), the General Law of the Environment (Act 25.675), the Hazardous Waste National Act (Act 24.051), environmental principles (progressivity, prevention, precaution, intergenerational equity), the Mendoza Constitution and the provincial environmental act (Act 5691). Climate change is only a passing reference in the lawsuit, which merely mentioned the UNFCCC to refer to the precautionary principle. Concerns and arguments related to the climate impact of fracking activities were brought in the case through three amicus curiae filed by the Fundación Ambiente y Recursos Naturales (FARN, December 2020), EarthJustice (January 2021) and the International Association for Environmental Defense (AIDA, February 2021). In these submissions, among other concerns, the ENGOs highlighted the climate impacts of fossil fuel production (both CO2 emissions of future combustion and CH4 leaks) and alleged that those impacts were not duly considered when making the decision (cost-benefit analysis) and that they could imply a breach in Argentina’s international commitments. AIDA’s submission also observed that, in October 2018, the UN Committee on Economic, Social and Cultural Rights recommended Argentina to reconsider the exploitation of Vaca Muerta’s oil and gas reserves in light of the climate commitments under the Paris Agreement and the scarcity of the global carbon budget. In 2023, the Centro de Estudios Legales y Sociales (CELS), the Center for International Environmental Law (CIEL); and the Environmental Law Alliance Worldwide (ELAW USA) also presented amici curiae. On August 26, 2024, the Mendoza Supreme Court accepted the amicus brief submitted by Fundación Ambiente y Recursos Naturales (FARN, December 2020) and rejected the rest of them. The Court considered that the rejected amici curiae were not contributions of legal or substantive value for the case at stake.